B-139863, JUL. 9, 1959

B-139863, JUL. 9, 1959

TO THE PACIFIC INTERMOUNTAIN EXPRESS COMPANY:

REFERENCE IS MADE TO YOUR THREE LETTERS OF MAY 7, 1959, UNDER YOUR CLAIMS NOS. 8-35, 9-2387, AND 9-2147, CONCERNING OVERPAYMENTS OF $686.80, $3,045.71, AND $333.46 STATED ON YOUR BILLS NOS. 25104, 25052, AND 25277, RESPECTIVELY, FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY UNDER GOVERNMENT BILLS OF LADING.

OUR NOTICES OF OVERPAYMENT (USGAO FORM 1003), REQUESTING REFUND OF THE AMOUNT FOUND OVERPAID ON EACH BILL, WERE SENT TO YOU ON BILL NO. 25104 IN DECEMBER 1957 (AMENDED APRIL 1959), AND ON BILLS NOS. 25052 AND 25277 IN APRIL 1959. THE SHIPMENTS INVOLVED MOVED IN JULY AND AUGUST 1955; YOU DECLINE REFUND OF THE OVERPAYMENTS BECAUSE, IN YOUR VIEW, THEY ARE "OUTLAWED" UNDER SECTION 204A OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 304A, WHICH, PRIOR TO ITS AMENDMENT IN 1958 BY PUBLIC LAW 85-762, 72 STAT. 859, PROVIDED A TWO-YEAR LIMITATION PERIOD ON ACTIONS AT LAW BY AND AGAINST COMMON CARRIERS BY MOTOR VEHICLE SUBJECT TO PARTII OF THE INTERSTATE COMMERCE ACT. IN SUPPORT OF YOUR VIEW YOU REFER TO UNITED STATES V. DEQUEEN AND EASTERN RAILROAD COMPANY, 167 F.SUPP. 545, DECIDED NOVEMBER 28, 1958, BY THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, WHICH HOLDS THAT SECTION 16 (3) (C) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 16 (3) (C), WHICH, PRIOR TO ITS AMENDMENT IN 1958, PROVIDED A TWO-YEAR LIMITATION PERIOD ON ACTIONS AT LAW AGAINST CARRIERS SUBJECT TO PART I OF THE INTERSTATE COMMERCE ACT, APPLIES TO SUITS FOR OVERPAYMENTS FILED BY THE UNITED STATES AGAINST RAIL CARRIERS.

THE UNITED STATES GENERAL ACCOUNTING OFFICE IS REQUIRED BY SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71, TO SETTLE AND ADJUST ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES, OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED EITHER AS DEBTOR OR CREDITOR. SEE SKINNER AND EDDY CORP. V. MCCARL, 275 U.S. 1, 4. CARRIERS' BILLS, GENERALLY, ARE PAID UPON PRESENTATION, PRIOR TO OUR AUDIT AND SETTLEMENT, BUT THE RIGHT IS RESERVED TO THE UNITED STATES TO RECOVER ANY OVERPAYMENTS BY DEDUCTION. SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66. DISCHARGING OUR RESPONSIBILITIES UNDER THOSE AND OTHER LAWS, QUESTIONS OFTEN ARISE CONCERNING THE LEGALITY OF PAYMENTS MADE FROM APPROPRIATED MONIES. IT MAY BE NOTED THAT DECISIONS OF THE UNITED STATES DISTRICT COURTS AND OTHER LOWER COURTS ARE GIVEN EFFECT WHERE APPROPRIATE AND JUSTIFIED IN CONNECTION WITH THE DISPOSITION OF THOSE QUESTIONS. HOWEVER, WHERE, AS IN THIS INSTANCE, A LOWER COURT DECISION IS CONTRARY TO THE INTERESTS OF THE GOVERNMENT AND IN CONFLICT WITH A GENERAL PRINCIPLE SETTLED IN THE GOVERNMENT'S FAVOR ON VARIOUS OCCASIONS BY OTHER COURTS, WE WOULD NOT BE JUSTIFIED IN GIVING SUCH DECISION CONTROLLING EFFECT IN OUR AUDIT ACTIVITIES.

GENERALLY, THE UNITED STATES, IN ASSERTING RIGHTS VESTED IN IT AS A SOVEREIGN GOVERNMENT, IS NOT BOUND BY ANY STATUTE OF LIMITATION, UNLESS THE CONGRESS CLEARLY HAS MANIFESTED A CONTRARY INTENTION. UNITED STATES V. NASHVILLE, C. AND ST. L. RY. CO., 118 U.S. 120 (1886); CHESAPEAKE AND DELAWARE CANAL CO. V. UNITED STATES, 250 U.S. 123 (1919); GRAND TRUNK WESTERN RY. CO. V. UNITED STATES, 252 U.S. 112 (1920); AND GUARANTY TRUST CO. V. UNITED STATES, 304 U.S. 126 (1938). THE PROVISIONS OF 49 U.S.C. 16 (3) HAVE BEEN HELD TO BE INAPPLICABLE TO ACTIONS AT LAW BY THE UNITED STATES; ILLINOIS CENTRAL R. CO. V. ROGERS, 253 F.2D 349 (1958); SHUTT V. UNITED STATES, 218 F.2D 10, CERTIORARI DENIED 350 U.S. 822 (1955); COMPARE UNITED STATES V. WESTERN PACIFIC RAILROAD COMPANY, 352 U.S. 59, 71 (1956). WE NOTE THAT THE DEQUEEN CASE UPON WHICH YOU RELY, NOW IS ON APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. UNITED STATES V. DEQUEEN AND EASTERN RAILROAD COMPANY, NO. 16203.

IT SHOULD ALSO BE NOTED THAT THE PROVISIONS OF 49 U.S.C. 66 PUT NO TIME LIMIT ON THE RIGHT OF THE UNITED STATES TO MAKE DEDUCTIONS FOR TRANSPORTATION OVERPAYMENTS AND THAT, AS THE UNITED STATES COURT OF CLAIMS OBSERVED,"IT WOULD BE REMARKABLE IF THE GOVERNMENT'S RIGHT OF SETOFF WERE BARRED 2 YEARS AFTER THE DELIVERY OF THE GOODS," SINCE A CARRIER'S CLAIM MAY BE SUED UPON AT ANY TIME WITHIN 6 YEARS AFTER IT ACCRUES. ATLANTIC COAST LINE R. CO. V. UNITED STATES, 140 F.SUPP. 569, 572.

IN THESE CIRCUMSTANCES, WE WOULD NOT BE WARRANTED IN CONCLUDING, AS YOU DO, THAT SECTION 204A OF THE INTERSTATE COMMERCE ACT SUPPLIES TO ACTIONS BY THE UNITED STATES, OR THAT THE EXPIRATION OF THE LIMITATION PERIOD IN THAT SECTION PRECLUDES THE RECOVERY OF OVERPAID TRANSPORTATION CHARGES.

IN THE ABSENCE OF ANY SUBSTANTIVE DEFENSE TO THE DETERMINATION OF THE OVERPAYMENTS REPORTED IN THE PRESENT MATTER, PROMPT REFUND SHOULD BE MADE TO AVOID COLLECTION BY OTHER MEANS.